Wright v. State, A12A2146.

• Decision Date: 11 February 2013
• Docket Number: No. A12A2146.,A12A2146.
• Parties: WRIGHT v. The STATE.
• Court: Georgia Court of Appeals

319 Ga.App. 723

738 S.E.2d 310

WRIGHT

v.The STATE.

No. A12A2146.

Court of Appeals of Georgia.

Feb. 11, 2013.

Stanley W. Schoolcraft III, Stockbridge, for Appellant.

Paul L. Howard Jr., Atlanta, Joshua Daniel Morrison, for Appellee.

PHIPPS, Presiding Judge.

In connection with crimes perpetrated upon Wayne Thatcher, a jury found Glenard Rico Wright guilty of armed robbery, aggravated assault, possession of a firearm during the commission of a crime (armed robbery), and theft by taking. In this appeal, Wright contests the sufficiency of the evidence to support his convictions,¹ the admissibility of certain evidence, the propriety of various remarks made during the state's closing argument, the trial court's refusal to instruct the jury on robbery as a lesser included offense of armed robbery, and the court's rejection of his claim of ineffective assistance of trial counsel. Because Wright has demonstrated no reversible error, we affirm.

1. Where, as here, the appellant challenges the sufficiency of the evidence to support a conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ²

Thatcher testified about the crimes committed against him, as follows. On January 18, 2009, at about 8:40 a.m., he drove to a park's aquatic center, where he planned to attend his granddaughter's swim meet. After parking his SUV about a block down the street, he began walking to the aquatic center, holding in his hand his cell phone and keys. Thatcher noticed three individuals walking together nearby; abruptly, the male among the three approached him, thrust a gun approximately six inches from Thatcher's face, took his cell phone and keys, then commanded Thatcher to “Get out of here,” while waving the gun. Thatcher ran into the aquatic center and reported the incident to police. At trial, Thatcher identified Wright as the gunman.

Evidence showed that, at about 11:15 a.m., a police officer drove Thatcher to a location about a mile from the aquatic center, where his stolen SUV had crashed. A police officer had unsuccessfully pursued the SUV's driver, a male who fled on foot; however, two girls that police discovered at the SUV were detained at the crash site. Thatcher identified one girl as one of the three individuals he had seen when walking to the aquatic center; Thatcher did not identify the other. Thatcher's SUV key was in the ignition, and his cell phone was found inside the vehicle. Numerous calls had been placed using his phone since it was taken, including one call to Wright's mother, with whom Wright lived. Police took the two girls into custody. One girl was Wright's cousin, and the other girl was the cousin's friend. Each girl appeared at Wright's trial as a witness for the state.

Wright's cousin was 15 years old when she testified at the trial held in March 2010. She recounted that on the night before the incident, she and her friend had spent the night at Wright's mother's house. The next morning, January 18, she and her friend began walking to the park where a swim meet was taking place; Wright soon “caught up” with them. Wright's cousin recalled at trial seeinga man parking his SUV, Wright approaching the man as the man was walking toward the aquatic center, Wright putting a gun to the man's head, and the man then running away. Wright's cousin testified that, later that day, she and her friend saw Wright standing by the man's SUV. They all got into the SUV, and Wright drove away. The police were soon following them. While the SUV was in motion, Wright jumped out of it and fled on foot. The SUV crashed, and the two girls, but not Wright, were taken into police custody. That same day, Wright's cousin gave a written statement to police.

Wright's cousin's friend was 13 years old when she testified to the following. On the night before the incident, January 17, she and Wright's cousin slept at Wright's mother's house. Early the next morning, she and Wright's cousin walked to the park with the aquatic center, and Wright joined them later. Wright made a comment to them about the large number of cars in the area and said that he needed a car. About that time, the girl testified, Wright noticed an SUV being parked on a hill nearby and told them that he liked that vehicle; so, he left the girls, walked up the hill, then approached Thatcher, the man who just had parked the SUV. The girl was asked at trial, “What did you see happen next?” She answered that she and Wright's cousin started “walking like—like going up the hill. And I saw the man, Mr. Thatcher, running down the hill.” She recounted further that Thatcher appeared scared as he was running away and that Wright meanwhile sped away in Thatcher's SUV.

Wright's cousin's friend testified further that when she and Wright's cousin later saw Wright with the SUV, they got into the SUV and Wright drove away. Soon, a police car was trailing them, and Wright accelerated. After turning down a street that ended at a ravine, Wright announced that they would all jump out (while the SUV was moving). She elected to stay in the back seat; Wright's cousin tried to jump out, but the door pinned her leg to the vehicle; and Wright escaped on foot into nearby woods. She and Wright's cousin were taken into custody, and that day, she gave a written statement to police.

The state showed that Wright was arrested about four months after the criminal incident, in May 2009.

Wright, who was about 20 years old at the time of trial, did not testify, but called as witnesses his mother, his maternal aunt, and another relative. His mother testified that Wright was living with her at the time in question and typically slept or stayed “in his bed laying around” until noon each day. She recalled specifically the date in question, and testified that Wright was at home that morning until at least 10:30. She testified that neither of the girls who were found at Thatcher's crashed SUV had spent the previous night at her home. To her knowledge from cleaning her son's room, Wright did not own a gun. Wright's mother recalled that she did not immediately learn about the criminal incident involving Thatcher, but that when she accompanied Wright to a hearing on charges related thereto, Wright apprised her of the allegations, including the specific date of the incident. She conceded at trial that, despite determining prior to Wright's trial that Wright was at home at the time of the crimes, she had not told police so until the trial date.

Wright's maternal aunt testified that she was living with Wright and his family during the relevant time period, that Wright did not work, and that he typically got out of bed at about noon. She, too, recalled specifically that Wright was in his room on the morning of the incident, and that neither of the girls who were later discovered at Thatcher's crashed SUV had either spent the previous night at the residence or was at the residence that morning. She recalled further that Wright's mother had told her that Wright had been arrested for robbery, and she conceded at trial that she had never told the police that Wright could not have been the perpetrator.

Wright's third witness, another relative, testified that he, also, was living at Wright's residence at the time of the incident, that Wright had no job, and that Wright typically stayed in bed until early afternoon. This relative specifically recalled that, when he (the relative) woke up at about 11:00 or 11:30 a.m. on the particular date that Thatcher's property was taken from him, Wright was at home. This relative also had not heard about the underlying criminal incident until about the time he learned that Wright had been arrested in connection therewith. He testified that, after Wright was arrested, his mother refreshed his memory of the particular date in question. He, too, conceded that he had not reported to police that Wright was at home that morning.

On appeal, Wright challenges the sufficiency of the evidence to support the guilty verdicts upon charges of: (i) armed robbery,³ by taking, with use of a gun, a cell phone and keys from Thatcher; (ii) aggravated assault, ⁴ by pointing a gun at Thatcher; (iii) possession of a firearm during the commission of a crime (armed robbery); ⁵ and (iv) theft by taking Thatcher's SUV.⁶ Wright cites what he claims were weaknesses in the state's case, including that the state's witnesses were not credible and gave contradictory accounts.

This evidentiary challenge presents no basis for reversal.

The jury, not this court, resolves conflicts in the testimony and weighs the evidence. And decisions regarding credibility are uniquely the province of the jury, which was not required to believe [the testimony of Wright's witnesses], nor to disbelieve that of the state's witnesses. Where, as here, there was sufficient evidence, even though contradicted, to support each fact necessary to make out the state's case, the jury's verdicts will be upheld.⁷

2. Wright contests, on various grounds, the admission of the following evidence.

(a) Citing his cousin's testimony that he committed the crimes with the use of a gun, Wright argues that the trial court erred by allowing the prosecutor to “lead its witness[ ] into making statements by putting words in the witness['s] mouth.” The transcript shows that, on direct examination of this witness, the state elicited testimony that she was walking with her friend and Wright and that Wright left their company and ran to the man who had just parked an SUV. Direct examination continued.

Q: Now, what did you do when you saw the defendant run up to the man that you saw parking the car?

...

A: I was just standing there.

Q: What was [your friend] doing?

A: Standing there.

Q: And I want you to look over and tell these folks what you saw the defendant do.

A: I seen him run up to—I seen...